[14
OF 2022] [14th
March 2022] Whereas, in Notification
dated 03.11.2011, applications were invited by the Karnataka Public Service Commission
from eligible candidates for filling up of 362 Group-A and Group-B posts. The
Preliminary Examination was conducted on 22.04.2012. The main examination was
held from 15.12.2012 to 06.01.2013. Result of the examination was published on
21.03.2013. Whereas, the Karnataka
Public Service Commission had conducted the interviews of qualified candidates
from 07-05-2013 to 27-05-2013. When the Vivavoce had been conducted, a
candidate by name Dr.Mythri.H.P.S. made a complaint before the then, Advocate
General on 28-05-2013 alleging that in this process, she (Dr.Mythri.H.P.S) was
eliminated and the candidate below her was selected to the post of the
Assistant Commissioner. She has also alleged that demands were made by Smt.
Dr.Mangala Sridhar, Member, KPSC in order to ensure her selection. Whereas, pursuant thereto, a
FIR was registered in Crime no 28/2013 dated 25-06-2013 before the Vidhana
Soudha police station, Bengaluru alleging for the offences punishable under
Section 341,120-B,418,423, 465 of Indian Penal code and under Section 7 of the
Prevention of Corruption Act, 1988. The Government by its order dated
27-06-2013 directed the CID to conduct the investigation. The CID after
investigation had submitted a preliminary/interim report on 10.09.2013 and submitted
chargesheet before the Hon'ble XXIII Additional City Civil and Sessions
(Special Court )which was registered as Special Case No.311 /2014. Whereas, based on the
interim report, the Government issued Government Order dated
15.10.2013/14.08.2014 cancelling the results of the main competitive
examination and also the Viva-Voce, directing the Karnataka Public Service
Commission to revaluate the answer script of the main written examination and
to conduct Viva-Voce strictly in accordance with the recommendations of HOTA
Committee. Whereas, in the meantime
some of the candidates had challenged the action of the Government order dated
15.10.2013 by filing applications before the Karnataka Administrative Tribunal.
Gradually, all the affected candidates preferred applications before the
Tribunal and the Tribunal granted an 'interim order' directing the State
Government not to notify for the '362 posts' which was a subject matter of the
2011 Selection List till the disposal of the applications. Whereas, during the pendency
of the proceedings before the Karnataka Administrative Tribunal, CID had
submitted its final report and in its 'final report' had concluded that the
officials, who are the then Member of the Karnataka Public Service Commission
shown as Accused Nos. 9 to 16 had entered into criminal conspiracy and had
misused the official machinery to do favours for candidates seeking to be
appointed as Group-A and B employees under the 2011 Notification. The said 8 Accused persons
have obtained illegal gratifications from various candidates and had misused
their office to grant appointments for such illegal gratification and thereby
had committed the offences punishable under Sections120-B, 166, 167 of Indian
Penal Code R/w Section 13 (1) (d) and 13 (2) of Prevention of Corruption Act,
1988 and Section 37 of Indian Penal Code . Whereas, it is pertinent to
note here that, although the names of certain candidates find a place in the
'charge sheet' for having maintained telephonic contact with some of the
Accused, none of them have, themselves been named as Accused either in the
charge sheet or in the FIR. Whereas, the Karnataka
Administrative Tribunalin the meantime, had proceeded to hear the matter on
merit. After hearing the matter, the Tribunal by its order dated 19.10.2016,
allowed the Applications and quashed the Government Order dated 14.08.2014. The
Tribunal thereafter directed the State of Karnataka to issue orders of
appointment to the Applicants in terms of the provisions of Rule 11(3) of
'1997' Rules, within a period of two months from the date of receipt of the
copy of the order. Whereas, a perusal of the
said charge sheet would show that, none of the candidates who are either
selected or had participated in the selection process have been named as
Accused persons. The gist of the charge sheet filed by the C.I.D discloses that
there is a commission of offence of criminal conspiracy by the Chairman,
Members, staff and some middlemen to favour certain candidates who are
otherwise ineligible or less meritorious by accepting illegal gratifications.
The name of these candidates is not forthcoming in the report of the C.I.D. Whereas, these candidates
alleged to have paid illegal gratification to the Members or the middlemen is
also not forthcoming in the charge sheet. In view of the matter, this is an
aspect to be established before the Court of law after a full fledged trial. In
pursuance to this order dated 17.03.2017, the State Government has directed
Heads of Departments to issue Appointment Order after completion of procedure
of verification. Whereas, Director, Municipal Administration issued appointment
order to 18 candidates. On 27.03.2017 and on 03.04.2017 the RDPR Department has
issued appointment orders to 60 candidates. Whereas, apart from the
aforesaid allegation, prima-facie the CID Report does not appear to point
fingers at any of the other candidates who have participated in the Selection
process and form part of the selection list. Therefore, the present issue
throws up a very pertinent question as to what should be the fate of those
candidates against whom there is no allegation and no elements of doubt or
suspicion. A relevant question arises as to can these candidates who have
apparently undergone certain struggle and put in efforts to participate and get
through the selection process, be punished for their no fault (without
establishing their involvement), by holding that the entire list is vitiated
due to the conduct of a few persons, if at all, any aspersions can be cast
against their conduct. Whereas, mere allegations of
malpractice and commission of alleged offences, would not be sufficient to
justify the end result of cancelling the appointments in respect of all the
candidates. It is only after the due process of law is undertaken by way of an enquiry
or investigation reaches its logical conclusion if it is so established and
proved before Court of Law, then it be said that the time is right to penalize
the delinquent or the offender. Whereas, the State has
initiated (on finding some prima facie materials) and awaited these proceedings
to reach their logical and final conclusion failing which, it would defeat the
very ends of justice to penalize the candidates who find a place in selection
list. No member of KPSC or no Candidates have been proved guilty of alleged
offences or are convicted in any court of trial. In writ Petitions bearing
Nos.13617-13627/2017 in case of Smt. Renukambike R and Others Vs the State of
Karnataka challenging the order of KAT, the Hon'ble High Court of Karnataka
Bengaluru on 09.03.2018 allowed the writ petitions and upheld the G.O. dated
14.08.2014 and held as under; "52.
In the light of above discussion, we are
of the considered view that, the Administrative Tribunal erred in substituting
its opinion and therefore, the impugned judgment quashing State Government's
decision to withdraw the is wholly unsustainable. Consequently, direction to
the State Government to issue appointment orders to the selected candidates is
also rendered unsustainable in law." X X X 55. Resultantly, these writ petitions eminently
deserve to be allowed and accordingly: (a)
Writ Petitions No. 13617-13627/2017 &
14529/2017 and writ Petition No. 11342/2017 are allowed; (b)
Common order dated 19.10.2016 passed by the
Karnataka State Administrative Tribunal, Bangalore, in Applications No.
6268/2014, 6395/2017 c/w 6432/2014 to 6444/2014 &6598/2014, 7464/2014,
7941/2014 to 7946/2014, 7950/2014 to 7966/2014, 7967/2014, 7968/2014,
7969/2014, 9112/2014 to 9126/2014, 9592/2014 to 9610/2014 and 8298/2015, is
quashed. (c)
Un-official Note, xxx 2016 dated 17.03.2017,
issued by Deputy Secretary, DPAR (Services), Government of Karnataka, is
quashed; (d)
Official Memorandum, xxx 2016-17 dated
27.03.2017, issued by Director, Municipal Administration, Bengaluru, is quashed; (e)
All orders of appointment/s issued pursuant
to Final Select List dated 21.03.2014 prepared by KPSC are declared illegal and
shall stand quashed; and (f)
Government Order, xxx dated 14.08.2014,
withdrawing requisitions issued to KPSC for selection of Gazetted Probationers
for 2011, and to close selection process, is sustained. "56.
In view of disposal of these writ petitions, I.A. No. 16/2017 (in W.Ps. No.
13617-13627/2017 & 14529/2017) for impleadment, filed by the applicants
claiming to be candidates in 2011 selection, does not survive for consideration
and is accordingly disposed of." In I.A. No. 4/2018 in Writ
Petitions No. 13617-13627/2017 Renukambike R and Others Vs State The Hon'ble
High Court in Division bench has held on 13th July 2018 as follows; "30.
For the reasons recorded above, we answer the point No. (i) in the affirmative and
record our finding that results of written examination are vitiated." Re-Point (ii): Whether fresh
viva voce can be ordered, if the evaluation of answer scripts are not vitiated? 31. While answering point No. (i), we have
recorded that the result of written examination are vitiated. In view of the
said finding, we answer this point in the negative and record that fresh 'viva
voce' cannot be ordered on the basis of existing results of written
examination. Re-Point (iii): Whether
fresh evaluation of answer scripts can be ordered, if written examination
results are vitiated? 32. While considering this option, it is necessary
to take note following aspects: that recruitment process in
question is for Gazetted Probationers, 2011; that the preliminary written
examination was conducted on 22.04.2012; that the written examination
(main) was conducted between 15.12.2012 to 06.01.2013; reckoned from any angle,
nearly 8 years have elapsed from the designated year of recruitment and 5 1/2
years from the date of written examination 33. Thus, keeping in view the facts of this case
and the time lapse, we are of the clear opinion that, it is not a fit case to
direct re-evaluation of answer scripts. On 13.08.2018: New SLP was
filed by Mythri VS the State of Karnataka bearing the dairy no: 30195/2018
before Supreme Court challenging the Hon'ble division bench high court order
dated 13.07.2018 and Supreme Court ordered as follows:- we are not inclined to
interfere with the impugned judgment and order. consequently the SLP is
dismissed." Whereas the state Government
filed a new SLP (Dairy No-21729/2019) before the Hon'ble Supreme Court
challenging the high court order dated 13.07.2018, The Hon'ble Supreme Court.
In this case has ordered as follows:- "We are not inclined to
interfere with impugned odre(s) passed by the High Court the SLP are
accordingly, dismissed." Pending interlocutory
applications forms are disposed". Having examined the above
judgments it is apparent that the Hon'ble High Court has relied in arriving at
such decision based on the interim report of the CID. Unless the tainted
candidates are segregated and a detail investigation are held and proved guilty
in the court of law after due trail it may not be proper to hold the
examination as vitiated. Whereas in respect of untainted candidates their
sincere efforts has to be respected and their legitimate expectation for having
appointed shall be honoured. It was also bound duty on
the State Legislature under article 323(2) of the Constitution to annul the
withdrawal of requisition made to KPSC before issue of Government order dated
15.10.2013 on the basis of an interim investigation report of the CID. It is apparent from para 45
of the High Court judgment in Renukambe Vs. State of Karnataka case dated 9th
March 2018 which reads as follows; "45.
In the light of facts recorded by the CID in it's investigation report, we are
of the view that there is no error in exercise of their powers under the
transaction of business by the State Government in withdrawing the requisition
given to the State Public Service Commission." Here, in this case the very
basis of the judgments in the vitiating the examination process based on the
CID interim report itself is misleading. Hence, the Government Orders dated
15.10.2013 and 14.08.2014 respectively suffer from severe procedural infirmity
and have no sanctity in the eyes of law especially in view of the ratio laid
down by the Apex Court in the case of Babu Varghese v. Kerala State Bar Council
reported in 1999(3) SCC 422, which reads as follows:- "It is the basic
principle of law long settled that if the manner of doing a particular act is
prescribed under any Statute, the act must be done in that manner or not at
all. The origin of this rule is traceable to the decision in Taylor VS Taylor
(1875) 1Ch.D 426 which was followed by Lord Roche in Nazir Ahmad VS King
Emperor AIR 1936 PC 253 who stated as under: "Where a power is given
to do certain thing in a certain way, the thing in a certain way, the thing
must be done in that way or not at all." Now therefore, it is
considered necessary to bring a legislation to annul the action taken by the
previous Government without proper approval of the State Legislature and
thereby as a resultant the decision of the Hon'ble High Court in this regard. Whereas the charges made on
the candidates in the trail court has reached the logical end and no member of
Karnataka Public Service Commission or candidate has been proved guilty of any
offence or convicted in any court of trail. It is also pertinent to
State that the decision of the High Court leads to violation of the Article 14
and 16 of Constitution of India. Whereas in view of all above
matters it is considered necessary to validate the recruitment orders issued by
the Government to 2011 Gazetted probationers and to legalise the selection
list. Now therefore, be it enacted
by the Karnataka State Legislature in the seventy third year of the Republic of
India as follows:- (1)
This Act may be called the Karnataka Civil
Services (Validation of Selection and appointment of 2011 batch Gazetted probationers)
Act, 2022. (2)
It shall come into force at once. (1)
In this Act unless the context otherwise
requires,- "2011 batch Gazetted probationers" means candidates
selected in the 2011 batch Gazetted probationers selection list by the
Karnataka Public Service Commission; (2)
Other words and expressions used but not
defined shall have the same meaning as defined in the Karnataka State Civil
Services Act, 1978. (a)
2011 batch Gazetted probationers selection
made by the Karnataka Public Service Commission shall be valid in accordance
with law; (b)
All orders issued on 15.10.2013 and
14.08.2014 by the State Government withdrawing the recruitment process of 2011
batch Gazetted probationers shall stand cancelled. (c)
The State Government shall take immediate
steps to issue appointment orders to 2011 batch Gazetted probationersas per the
Karnataka Public Service Commission selection list. (d)
All appointments of 2011 batch Gazatted Probationers
shall be within the extent and in accordance with the provisions of rule 18 of
the Karnataka Civil Services (General Recruitment) Rules, 1977. The seniority
of the 2011 batch Gazatted Probationers shall come into force on their date of
report to the respective post in accordance with the provisions of this Act. The 2011 batch Gazatted
Probationers shall not be eligible for the retrospective seniority at any
time.The 2011 batch Gazatted Probationers shall not claim seniority
retrospectively as matter of right at any time. (e)
No suit or other proceeding shall be
maintained or confirmed in any court or any Tribunal or before any Authority
for the review of any such appointment made in accordance with the provisions
of this Act. (f)
No court shall enforce any decree or order to
direct the review of any such cases contrary to the provisions of this Act.Karnataka
Civil Services (Validation Of Selection And Appointment Of 2011 Batch Gazetted probationers)
Act, 2022
Section - 2. Definitions.
Notwithstanding anything contained in any judgment, decrees or order of any
court, Tribunal or Authority to the contrary and in order to provide Justice to
the 2011 batch Gazetted probationers for their no fault, it is hereby enacted
as follows:-
If any difficulty arises in giving effect to the provisions of this Act, the
State Government may by General or Special order make such provisions as
appears it to be necessary or expedient to remove difficulty.